Dawson Miller, C.J.This matter comes before us on the application of one Parmeshwar Ahir, an Indian subject of His Majesty, praying that a writ of habeas corpus may issue to the jailor of Baxar Jail, where he is now imprisoned, to produce him before this Court with a view to enquire into the legality of his detention.

2. The application came originally before a single Judge of this Court and as the case involved questions of constitutional importance affecting the legislative powers of the Governor-General of India in Council, he ordered that notice should issue in the first instance to shew came why a writ of habeas corpus should not issue on the jailor of Buxar Jail to produce the body of Parmeshwar Ahir with a view to consider whether or not his conviction was valid, and it was directed that the notice should be served on the Crown. By this procedure the Government of India was given an opportunity of appearing by Counsel and the matter was referred to a Full Bench.

3. The facts of the case which were not in dispute appear from the petition and from documentary evidence put in on behalf of the Government of India, who instructed the Advocate-General to appear at the hearing to shew cause against the Rule. The petitioner was arrested in connection with what are known as the Bakr-Id riots, which occurred in different parts of this province in the months of September and October last resulting in considerable loss of life, personal injury and destruction of property. He was tried and convicted of dacoity, rioting and offences u/s 295, Indian Penal Code, and sentenced to 5 years rigorous imprisonment. The legality of the whole proceedings, which terminated in the conviction and imprisonment of the petitioner, is called in question on the ground that the tribunal which tried the case had no jurisdiction to act. The tribunal in question consisted of three Commissioners specially appointed by the Local Government of Bihar and Orissa under powers granted by the Defence of India, (Criminal Law Amendment) Act, 19 5 (Act IV of 1915), for the trial of persons under the said Act in the District of Shahabad. It is not disputed that the tribunal was properly constituted in accordance with the provisions of the Defence of India Act and it is not necessary to refer to the rules and notifications contained in the copies of the Gazette which have been handed in and which shew that the proper formalities were complied with, but it is contended that the Act itself in so far as it granted the powers mentioned is ultra vires the Imperial Council, on the ground that it was beyond the power of the Governor-General in Council to constitute a Court of justice or to authorise any other parson to constitute such a Court.

4. The Defence of India Act as the preamble shews, is in the nature of emergency legislation passed owing to the existing state of war and is entitled: "An Act to provide for special measures to secure the public safety and the defence of British India and for the more speedy trial of certain offences". It is a temporary measure only and by Section 1(4) its operation is to cease six months after the termination of the war. ft received the assent of the Governor General on the 19th March 1915 and Sections 1 and 2 came into immediate operation. The rest of the Act was to come into operation in any province or part thereof by notification in the Gazette of India by the Governor-General in Council. By Section 2 (1): "The Governor-General in Council may make rules for the purpose of securing the public safety and the defence of British India and as to the powers and duties of public servants and other persons in furtherance of that purpose." Then follow certain particular purposes for which rules may be made without prejudice to the generality of the foregoing power. These relate to precisions necessitated directly by reason of the war and are not material in the present case. The rest of Section 2 limits the punishment to be imposed by the rules for contravention of any order issued under the authority of the same, and provides for publication of the rules in the Gazatte of India whereupon they shall have effect as if enacted in the Act. By Section 3(1)--The Local Government may by order in writing direct that any person accused of anything which is an offence in virtue of any rule made u/s 2, or accused of any offence punishable with death, transportation or imprisonment for a term which may extend to seven years, or of Criminal conspiracy to commit, or of abetting, or of attempting to commit or abet any such offence, shall be tried by Commissioners appointed under this Act." By Section 3 (2) orders under subsection (1) may be made in respect of all persons or any class of persons accused of any offence or any class of offences referred to in that sub section. By Section 4 all trials under the Act shall be held by three Commissioners of whom two at least must have certain legal qualifications and such Commissioners are to be appointed by the Local Government for the whole or any part of the province or for the trial of particular persons or classes of persons.

5. Sections 5, 7 and 9 provide that the existing procedure in Criminal oases and the rules of evidence shall in certain respects be modified for the purposes of trials under the Act, and Section 6 provides that any sentence authorised by law may be imposed and the judgment of the Commissioners shall be final and conclusive and no order of confirmation shall be necessary. Section 10 gives the Local Government power by notification in the local official Gazette to make rules regulating the procedure to be adopted at the trials by the Commissioners and the execution of sentences passed by them.

6. Sections 8 and 11 are important. They are as follows:

8. (1) Notwithstanding the provisions of the Code of Criminal Procedure, 1898, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall be no appeal from any order or sentence of Commissioners appointed under this Act and no Court shall have authority to revise any such order or sentence or to transfer any case from such Commissioners, or to make any order u/s 494 of the Code of Criminal Procedure, 1898, or have any jurisdiction of any kind in respect of any proceedings under this Act.

(2) Nothing in Sub-section (1) shall be deemed to affect the power of the Governor-General in Council or the Local Government to make orders u/s 401 or 402 of the Code of Criminal Procedure, 1898, in respect of persons sentenced by Commissioners under this Act.

11. No order under this Act shall be called in question in any Court and no suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act.

7. It should be observed that the Act is designed not only to carry into effect the precautions enumerated in the second paragraph of Section 2 (1), which may be regarded as precautions directly necessitated by reason of a state of war, but also to provide special measures for dealing speedily with offences affecting the public safety, which though not directly arising through a state of war are particularly undesirable in times of great stress and emergency. We are not concerned, however, with the wisdom of the policy underlying the enactment in question. If the Act itself is outside the scope of the powers conferred upon the Governor-General in Council by Act of Parliament, I conceive that this Court has power in a proper proceeding to declare such an enactment ultra vires and of no force and effect with all the consequences that may result therefrom.

8. When the Defence of India Act was passed the Government of India Act, 1915 (5 and 6 Geo V, C.61). which consolidated and re-enacted existing Statutes relating to the Government of India and the functions of the High Courts, had not come into operation. It is, therefore, necessary to consider the Defence of India Act in the light of the powers conferred upon the Governor- General in Council by earlier Statutes and in particular the Indian Councils Act, 1861 (24 and 25 Vict. C. 67) and the Indian High Courts Act passed in the same year (24 and 25 Viet., C. 1049. Before doing so it would be convenient to deal shortly with the learned and elaborate argument of Mr. Das on behalf of the petitioner in which he surveyed the whole history of the Bowers conferred upon or exercised by the East India Company from its earliest infancy when a Charter was granted by Queen Elizabeth in the year 1600 to certain merchants trading in the East Indies. It is sufficient for our purpose to say that the Company, under whatever name it was from time to time called, in the course of its development gradually acquired by successive charters certain legislative and administrative powers and certain rights and prerogatives appertaining to the sovereign which they at first exercised in delegation of the powers so granted. Having established themselves in territories extending from Madras northwards into Bengal, Bihar and Orissa, and other parts of India, the Company undoubtedly in exercise of powers conferred or assumed not only made their own laws but also constituted Courts for the administration of the laws which they sought to enforce. Whether this was done by virtue of the prerogative of the British sovereign or whether after the Dewani was obtained by Lord Clive from Shah Alum in 1765, it was done by virtue of the sovereign rights of the Moghul Emperor or whether it was done by reason of an assumed power devoid of legal sanction, does not appear to me to be of vital consequence in the view I take of this case. Mr. Dass argument on behalf of the petitioner, however, was largely directed to the point that the powers of the Company to establish Courts were derived either from the sovereign powers of the Moghul Emperor or in virtue of the prerogative of the Crown up to the period between 1858 and 1861 when by the enactments passed in those years, he contends, those powers ceased to exist in the Government of India and were transferred to the Crown in Parliament. The question we must consider is whether the power which was undoubtedly exercised before 1858 was continued in the Governor-General in Council after 1861 by the enactments of that year, and for this purpose a short survey of the earlier legislation becomes necessary in order to see how far Parliament has recognized that power either expressly or by implication and whether if it was so recognised, there is anything to indicate that a different policy was intended to be followed by the two enactments of 1861. It was not until the so-called Regulation Act of 1773 (13 Geo. III, C. 63) and the Charter of George III establishing the Supreme Court in the following year came info force, that the executive and legislative powers if the Company then exercised by the Governer-General in Council, came to be questioned. The acute conflict which then arose between the Governor General in Council on the one hand and the Supreme Court on the other led to the passing of the East India Company Act of 1781 (21 Geo. III, C. 70). That enactment provided that the Governor-General in Council should not be subject jointly or severally to the jurisdiction of the Supreme Court when acting in their public capacity and that persons impleaded in the Supreme Court for acts done by written order of the Governor-General in-Council might plead the general issue and proof of such order should amount to a complete justification of such acts except in cases affecting the rights of British subjects over which the jurisdiction of the Supreme Court was recognised. All matters concerning the revenue were also declared beyond the jurisdiction of the Supreme Court. The conflict although not so acute continued thereafter to some extent until 1858, when the territories and government of India were transferred to and exercised in the name of the Crown. In the meantime, however, new Courts were established by the -Company in the conquered or ceded territories. In 1793 (33 Geo. III, C. 52) "the whole Civil and Military Government of the Presidency of Fort William in Bengal and also the ordering, management and government of all the territorial acquisitions and revenues of the Kingdoms and Provinces of Bengal, Bihar and Orissa were vested in the Governor-General in Council subject to the restrictions of unrepealed enactments and the control of the Board of Directors in matters relating to the declaration of war and treaties guaranteeing possessions."

9. In 1833 the Government of India Act of that year (3 & 4 William IV, C. 85) was passed. It provided that the government of the British territories in India should remain in the Company until 1854 (subsequently continued by an Act of 1853 "until Parliament shall otherwise provide") and that all the real and personal property of the Company should be held in trust for the Crown for the service of India. Section 39 vested the Government in the Governor-General in Council and Section 45 provided that all laws and regulations made by the Governor-General in Council should be of the same force and effect throughout the Indian territories as any Act of Parliament and "shall be taken notice of by all Courts of justice whatsoever within the same territories in the same manner as any public Act of Parliament would and ought to be taken notice of." Section 46 provided that it should not be lawful for the Governor General in Council without the sanction of the Court of Directors to make any law or regulation which should empower any Courts of justice other than those established by Royal Charter to sentence to death any of His Majestys natural born subjects born in Europe or their children or which should abolish any of the Courts established by Royal Charter. Section 51 expressly reserved the right of Parliament to legislate for India and provided that the laws and regulations made by the Governor-General in Council should be transmitted to England and laid before both Houses of Parliament the better to enable Parliament to exercise at all times such right and power."

10. No other Act of importance was passed until 1858, but it should be observed that although the enactments of the Indian Council were from 1833 brought directly under the notice and control of Parliament, no question seems to have been raised therein as to the powers of the former body to constitute, as they did, new Courts or to interfere with the jurisdiction of existing Courts. Indeed it is conceded by Mr. Das that the power of the Indian Legislature to interfere with the jurisdiction of any ex sting Court cannot be contested and in view of the ruling of the Judicial Committee in the case of Empress v. Burah 4 C.172 : 5 I.A. 178 : 3 C.L.R. 197 : 3 P.C.J. 834 : 3 P.C.J. 556 : 2 Ind. Jur. 618 : 2 L.R. 63 : 2 Ind. Dec. 110 (P.C.) it is difficult to see how such a contention could be urged with any hope of success even by Counsel of Mr. Dass undoubted courage and ability. He does contend, however, that there is no power in the Governor-General in Council to constitute a new Court. The power of destruction except as expressly limited by the Act of 1861 is conceded, the power of construction is denied. It is not necessary to refer in detail to the Government of India Act, 1858 (21 & 22 Vic., C. 1060. It marked the end of the activities of the old Bast India Company, although the Company was not formally dissolved until 1874, and it directed that henceforward India should be governed by and in the name of Her Majesty. The Secretary of Sate for India was clothed with the powers formerly exercised by the Company or the Court of Directors or Court of Proprietors. A new Council was to be established which together with and under the direction of the Secretary of State was to form the Secretary of State in Council and conduct the business transacted in the United Kingdom in relation to the Government of India in place of the old Court of Directors and Court of Proprietors. The Council in India was to remain under the style of the Council of the Governor-General in India and all existing establishments and all laws and provisions then in force were to continue subject to the provisions of the Act pending further changes. The next few years were pregnant with legislation relating to India and in 1861 the Indian Councils Act and tie Indian High Courts Act were passed. By Section 22 of the former Act the Governor-General in Council was given power, subject to the provisions of the Act, to make laws and regulations "for repealing, amending or altering any laws or regulations whatever now in force or hereafter to be in force in the Indian territories now [or hereafter (see 55 & 56 Vic., C. 14, Section 3)] under the dominion of Her Majesty and to make laws and regulations for all persons whether British or native foreigners or others and for all Courts of justice whatever and for all places and things whatever within the said territories." Certain restrictions on the wide powers given above are set out in the section. Those material to the present case are that the said laws and regulations shall not repeal or in any way affect any of the provisions of this Act or the unrepealed sections of the Acts of 1833, 1353 and 1-54, or any of the provisions of the Acts of 1858 and 1859 "or any provisions of any Act passed in this present session of Parliament or hereafter to be passed in anywise affecting Her Majestys Indian territories or the inhabitants thereof: or which may affect the authority of Parliament or the constitution and rights of the Bast India Company or any part of the unwritten laws of the constitution of the United Kingdom of Great Britain and Ireland whereon may depend in any degree the allegiance of any person to the Crown of the United Kingdom or the sovereignty or dominion of the Crown over any part of the said territories."

11. By the Indian High Courts Act, 1861, the Supreme Court and the Sudder Courts were established and by Section 9 the jurisdiction of the High Courts to be established thereunder is defined. Such jurisdiction was twofold, (i) that which should be expressly granted by Letters Patent, and (ii) save as otherwise directed by the Letters Patent and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor-General of India in Council" such jurisdiction as was exercised in the same presidency by any of the Courts abolished under the Act.

12. The Letters Patent dated the 9th February 1916, under which the High Court at Patna was constituted, provide by Clause 41 as follows: "And we do further ordain and declare that all the provisions of these our Letters Patent are subject to the legislative powers of the Governor-General in Legislative Council and also of the Governor-General in Council u/s 71 of the Government of India Act, 1915, and also of the Governor-General in oases of emergency u/s 72 of that Act and may be in all respects amended and altered thereby." It is clear, therefore, that whatever jurisdiction this Court has, whether derived from the Letters Patent or whether as the successor to the jurisdiction which the High Court at Calcutta formerly exercised in this Province, in either case such jurisdiction is subject to the legislative powers of the Governor-General in Council and the only question for determination is, assuming this Court has power to issue a writ of habeas corpus, is this a case in which the Governor-General in Council has acted outside the scope of his powers. It is contended that the words "laws and regulations" are synonymous and that the power granted to make laws should be confined to declaring the law as defined by Blackstone at page 44, Volume 1, Section 2, of his Commentaries where he says: "Municipal Law is properly defined to be a rule of civil conduct prescribed by the supreme power in a state commanding what is right and prohibiting what is wrong," and that the power to make laws does not carry with it the power of creating the machinery by which the laws shall be enforced. The power of creating Courts, it is said, is an attribute of sovereignty exercised either by virtue of the royal prerogative or possibly now-a-days by a Sovereign Legislature and in either case is outside the scope of the powers of the Governor General in Council since 1858. Whatever may have been the extent of the royal prerogative in respect of creating Courts in former times, it is probably accurate to say that at the present day that power would not ordinarily be exercised without the consent of Parliament. If then this power must now be regarded as a function of the Legislature in England it is difficult to see why the same power, which had previously been exercised by the Governor General in Council, should be regarded as excluded by the Act of 1861 or the Act of 1858 from the functions of the Legislative Council in India which is empowered to make laws and regulations for all Courts and all persons. In Damodar Gordhan v. Deorom, Kanji 1 B. 367 : 3 P.C.J. 277 : 3 P.C.J. 543 : 25 W.R. 261 : 1 Ind. Dec. 245 (P.C.) Lord Selborne in delivering the judgment of their Lordships described the combined effect of the Acts of 183 and 1861 in these words: "By the Imperial Statute 3rd and 4th William, cap 85, Section 43 a general power of legislation with certain exceptions not material for this purpose.) was given to the Governor-General in Council as to (among other things) all Courts of Justice whether established by Her Majestys Charters or otherwise and the jurisdiction thereof. This power is in substance continued by 24 & 25 Vic., cap. 67, Section 22, though the particular clause of the former Statute is thereby repealed." And the same noble Lord in Burahs case 4 C. 172 : 5 I.A. 178 : 3 C.L.R. 197 : 3 Sar. P.C.J. 834 : 3 P.C.J. 556 : 2 Ind. Jur. 618 : 2 L.R. 63 : 2 Ind. Dec. 110 (P. C.), to which I shall refer again presently, is reported as saying Empress v. Burah 4 C. 172 : 5 I.A. 178 : 3 C.L.R. 197 : 3 P.C.J. 834 : 3 P.C.J. 556 : 2 Ind. Jur. 618 : 2 L.R. 63 : 2 Ind. Dec. 110 (P.C.): The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But when acting within these limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself." But if on the other hand the power is to be regarded as part of the prerogative of the Crown Section 24 of the Indian Councils Act, 1861, provides that no law or regulation shall be deemed invalid by reason only that it affects the prerogative of the Crown. Moreover, at the time when the Act of 1861 was passed the words "laws and regulations" had received a recognised significance and included, in my view, the power of making laws and enforcing their observance by the creation of Courts of justice. Many new Courts have been created by Acts of the Indian Council since 1861 and our attention was drawn to a list of such Courts by the learned Advocate-General in the course of the argument. Some of them may be mentioned as typical. The Recorders Courts at Rangoon and Moulmein were created by Act XXI of 1863; the Chief Court of Lower Burma by Act VI of 1900; the Punjab Chief Court by Act XIX of 1865; the Central Provinces Courts by Act XIV of 1815. Other Courts were created by the Criminal Law Procedure Code, 1898. It is also worthy of notice that in 18j7, acting under the powers conferred by the Act of 1833 already referred to, Act XI of 1857 was passed by the Gvernor-General in Council entitled: "An Act for the prevention, trial and punishment of offences against the State" It was in part materia with the Defence of India Act, 1915. It gave the executive Govern-merit of any presidency or place power to establish a Special Court to try certain offences, including murder, arson and robbery, within proclaimed areas and the decisions of such Court were declared to be final and not subject to the Sudder Courts. There can be no doubt that many persons were tried and convicted by such Courts. It has never so far as I am aware, been suggested that the Act in question was illegal. So also in 1860 by Act XXII of that year the Chittagong Hill Tracts were entirely excluded from the jurisdiction of the Civil and Criminal Courts and from the revenue laws and officers, and power was given to the Local Government to appoint what Courts and officers it thought fit and to issue what instructions it pleased for the guidance of such officers and Courts. None of these Acts has been challenged or impeached. The decrees of the Courts so constituted have issued far and wide and have affected many persons. The Acts constituting them were within the knowledge of Parliament but in no case has the power to create such Courts been called in question. And with full knowledge of the manner in which the powers conferred by previous Statutes had been exercised by the Governor-General in Council, the Imperial Legislature on successive occasions extending over a number of years has re-enacted those powers in almost identical phraseology. In the case, above referred to of Express v. Burah 4 C. 172 : 5 I.A. 178 : 3 C.L.R. 197 : 3 P.C.J. 834 : 3 P.C.J. 556 : 2 Ind. Jur. 618 : 2 L.R. 63 : 2 Ind. Dec. 110 (P.C.) the Court had to consider the powers conferred on the Indian Council by the Acts of 1834 and 1861. By an Act of the Governor-General in Council passed in 1869 certain districts were removed from the jurisdiction of the existing Courts and placed under the jurisdiction of officers to be appointed by the Lieutenant-Governor of Bengal, who was also empowered to extend the provisions of the Act to the Cassyah and Jynteeah Hills. This the Lieutenant-Governor did in 1871 by notification in the Gazette and constituted a Court to exercise the powers of revision and appeal formerly exercised by the High Court of Calcutta. It was objected that the Act was ultra vires on the grounds, (i) that the Governor General in Council had no power to interfere with the jurisdiction of the High Court, and (ii) that he had no power to delegate his legislative functions to the Lieutenant-Governor, as, it was contended, had been done by the Act. A Full Bench of the High Court of Calcutta were unanimous in holding that the Governor General in Council had power to remove the district in question from the jurisdiction of the High Court and this view was affirmed on appeal to His Majesty in Council. The Court differed as to the power to delegate authority to the Local Government and their Lordships overruling the majority of the Court decided that such power was also intra vires. In dealing with the proper inference to be drawn from the fast that the disputed powers had been regularly exercised by the Governor General in Council under the provisions of the earlier Act, which had bean re-enacted in similar language in the Act of 1861, Sir Richard Garth, C.J., in the Court below Empress v. Burah 3 C. 63 : 1 C.L.R. 161 : 1 Ind. Dec. 632 is reported as saying: "Has then the Legislature of this country been proceeding all these years upon a principle unwarranted by law Has it been abdicating its proper functions and transferring powers which it had no right to transfer. The answer to this question will be found in the Councils Act of 1861. That Act has put a construction upon the meaning of the Indian Charter of 1833 which it seems to me almost impossible to misunderstand." This view was approved on appeal. Lord Selbourne in delivering the judgment of the Board said: "If their Lordships were to adopt the view of the majority of the High Court they would be casting doubt upon the validity of a long course of legislation appropriate as far as they can judge to the peculiar circumstances of India; great part of which belongs to the period antecedent to the year 1861 and must, therefore, (as Sir Richard Garth well observed) be presumed to have been known to and in view of the Imperial Parliament when the Councils Act of that year was passed." The Indian Councils Act, 1915, afforded another opportunity for Parliament to correct, if it required correction, the manner in which the Indian Council had for so long been exercising the powers which they conceived to have been conferred by the existing Acts, but the Government of India Act, 1915, which was passed after the Defence of India Act came into operation, re-enacted the former Statutes in practically identical language and must in my view have been intended to recognise the correctness of the interpretation placed upon the former enactments by the Indian Council. The same canon of construction, which was enunciated by Sir Richard Garth and approved by their Lordships of the Privy Council in Burahs case 4 C. 172 : 5 I.A. 178 : 3 C.L.R. 197 : 3 P.C.J. 834 : 3 P.C.J. 556 : 2 Ind. Jur. 618 : 2 L.R. 63 : 2 Ind. Dec. 110 (P. C.), was followed by Sir John Edge, C.J., and four other Judges of the High Court at Allahabad in Abdulla v. Mohan Gir 11 A 490 : A.W.N. (1889) 194 : 6 Ind. Dec. 741 (F.B.) in 1889 and Lord Macnagten in the case of Commissioners for Special Purposes of Income Tax v. Pemsel (1891) A.C. 531 : 61 L.J.Q.B. 265 : 65 L.T. 21 : 55 J.P. 805 expressed similar views in a case dealing with the construction of words occurring in the Income Tax Acts.

13. It was contended that Burahs case 4 C. 172 : 5 I.A. 178 : 3 C.L.R. 197 : 3 P.C.J. 834 : 3 P.C.J. 556 : 2 Ind. Jur. 618 : 2 L.R. 63 : 2 Ind. Dec. 110 (P. C.) was no authority for the proposition that the Indian Legislature could constitute new Courts, as this point was not urged in argument before the Court which tried that case and was not specifically dealt with by the judgments. On page 181 of the report in the Indian Law Reports, 4 Calcutta series, Lord Selborne in dealing with the question of the Indian Legislative Councils powers of delegation says: What was done is this. The Governor General in Council has determined in due and ordinary course of legislation to remove a particular district from the jurisdiction of the ordinary Courts and offices and to place it under new Courts and offices to be appointed by and responsible to the Lieutenent Governor of Bengal." There can be no question, therefore, that the fact that new Courts had been created was a matter which was brought before the notice of their Lordships and admitting that it is accurate to say that the question was not specifically dealt with, it is highly improbable that the point could have been lost sight of.

14. It seems reasonable to suppose that once it was determined that power to interfere with the jurisdiction of the High Court existed, the power to substitute a new Court to act in place of that whose jurisdiction had been determined was regarded as a matter which could not well be challenged. That case is at the least a light for our guidance in the present case, but I do not consider the matter as at all concluded by reason of that decision where the point was not specifically dealt with. I prefer to rest my decision upon the construction of the Act of 1861 viewed in the light of previous enactments and the powers consistently exercised thereunder. It was contended on behalf of the petitioner that in so far as new Courts were constituted by the East India Company before 1858 this was done in the ceded or conquered provinces in exercise of the royal prerogative or in the regulation provinces in exercise of the sovereign powers of the Moghul Emperor, both of which powers it is said were taken away from the Governor-General in Council in 1858 and vested in the Crown or in the Secretary of State in Council and in so far as they were constituted after 1861, it was merely a rearrangement of existing Courts created under earlier powers, As to the first part of this contention, even if it is conceded that the assumption of the powers exercised in the earlier period was justified on the constitutional grounds stated, it can hardly be disputed that Parliament recognised and acquiessed in what was done and I find nothing in the enactments of 1858 or 1861 to lead to the supposition that a different policy towards the Indian Legislature was at that time contemplated. It appears to me that Section 22 of the Indian Councils Act of 1861, read with Section 9 of the High Courts Act, is in terms amply wide enough to cover the powers now in question and had it been intended to deprive the Governor-General in Council of the powers so long exercised by his predecessors, such intention would have been expressed in clear and unambiguous language. Having regard to the opinion just expressed, it is not necessary to deal with the second part of the argument just mentioned. It would appear, however, to be based upon a false assumption Some of the Court; mentioned in an earlier part of this judgment were entirely new Courts and some were in newly acquired territory. No question has so far been raised as to the validity of their constitution. Indeed apart from the High Courts it would be difficult at the present day to find any Court in British India which does not owe its existence to an Act of the Indian Legislature. Were we to decide that such Acts are ultra vires practically the whole administration of justice in British India would cease to exist. I think the petitioners application should be rejected and the rule will be discharged.

15. The decision arrived at makes it unnecessary to consider the question which was raised as ancillary to the main question, namely, whether this Court has jurisdiction to issue a writ of habeas corpus and that point I leave undecided.

Chapman, J.

16. The petitioner is confined under sentence from a tribunal constituted under the Defence of India Act, 1915. He has moved this Court for a writ of habeas corpus on one ground only, namely, that so far as the. Defence of India Act authorised the creation of the tribunal, the Act is void inasmuch as it is beyond the power of the Governor-General of India, in Council to constitute a Court or to authorise any other person or persons to constitute a Court.

17. It is contended that the Indian Legislature is not sovereign inasmuch as it derives its powers from Act of Parliament, that the power to create a Court of justice rests in some special manner in the sovereign and that this power cannot be delegated otherwise than by an express enactment or proceeding to which the sovereign is a party.

18. It is not necessary for the purposes of this decision to deal elaborately with the latter part of this contention. The argument was mainly concerned with the authorities which deal with the prerogative to create Courts in England. But the sovereign power in respect of Courts outside Great Britain his histories and rests upon foundations of its own Campbell v. Hall 20 St. Tr. 239 and In the matter of the States of Jersey 8 St Tr (N.S.) 286. It is sufficient to say that a Court cannot be properly constituted otherwise than in the name of the sovereign and that, therefore, before I can hold that the Indian legislature can create a Court it must be clear beyond doubt that the power to create a Court has been properly delegated.

19. The powers of the Governor-General of India in Council, so far as the Defence of India Act is concerned, are derived from the Government of India Act of 1S53 and India Councils Act of 1861 (21 & 22 Vic, C. 106, and 24 & 25 Vic., C. 67). The former Act recited that the government of the territories then in the possession of or under the Government of the East India Company and all powers in relation to Government vested in or exercised by the said Company, and all rights vested in or which if the Act had not been passed might have been exercised by the said Company in relation to any territories, shall become vested in Her Majesty and be exercised in her name. It was enacted that India shall be governed by and in the name of Her Majesty and all the rights referred to may be exercised by and in the name of Her Majesty as rights incidental to the Government of India; that the existing Council in India should be styled; "The Council of the Governor-General in India." The Indian Councils Act of 1861 provided for the addition to this existing Council of further members for the better exercise of powers to make laws and regulations and that at meetings of the enlarged Council so constituted the Governor General of India in Council should have power to make laws and regulations for repealing, amending or altering any law and any regulation whatever now in force or hereafter to be in force in the Indian territories now under the dominion of Her Majesty and make laws and regulations for all Courts of Justice whatever and for all places or things whatever within the said territories. This power was subject to certain provisos and control, with which it is not necessary now to deal. These Statutes in terms recognised and were expressly founded upon the facts then existing. Section 7 of the Government of India Act of 1858 refers to the Council in India then bearing that name. It is necessary, therefore, to refer shortly to the constitution of the Council in India existing at the time of the enactment of the Government of India Act of 1858. The East India Company was originally a corporation with a trade monopoly created by charter from the Crown. It soon became necessary for the Companys officers to exercise powers of Government over the members of the Company who were engaged in trade in India. Such powers were accordingly conferred upon the Governor in Council in each of the Companys factories and were extended over all persons residing within factory limits In 1765 the Company obtained the Dawani or right to conduct the revenue and civil administration on behalf of the Moghul Emperor in the Provinces of Bengal, Bihar and Orissa. In view of this expansion of power and responsibility the East India Company Act of 1772 was enacted and it was directed that for the Government of the Presidency of Fort William in Bengal the Company should appoint a Governor-General and Councillors and that the whole Civil and Military Government of the Presidency, the ordering, management and government of all the territorial acquisitions and revenues in the Provinces of Bengal, Bihar and Orissa should be vested in the said Governor-General in Council. Thereupon the creation of Courts for the proper administration of civil justice was immediately undertaken and proceedings called regulations were issued creating these Courts. As instances of these regulations the Regulations of 1780 and 1798 be referred to. This form of government in India was continued from time to time by successive Acts of Parliament and the recognition was not thought inconsistent with the sovereignty of the Crown. In the recital to the Act of 1813 (53 Geo. II, C. 155) reference was made to the undoubted sovereignty of the Crown of the United Kingdom of Great Britain and Ireland in and for territorial acquisitions in India. In 1833 the powers of the Governor-General of India in Council were again revised and it was enacted that the superintendence, direction and control of the whole of the civil Government should be thereby vested in the Governor-General of India in Council. At the time the Government of India Act of 1858 was passed this Council had created an elaborate system of administration of Civil and Criminal justice. What then can be the meaning of Section 22 of the Indian Councils Act of 1861, which enables this Council which had been entrusted with the government of India at meetings to which additional persons had been summoned to make laws and regulations repealing, amending or altering any law or regulation whatever now in force in the Indian territories Several of the regulations then in force were regulations creating Courts. The power included the powers to make laws and regulations for all persons and all Courts of justice whatever and for all places or things whatever. This delegation of plenary power was designed for the benefit of public interests of the greatest magnitude and whatever may fairly be regarded as incidental to or consequential to the main purpose ought not (unless expressly prohibited) to be held by judicial construction to be ultra vires Attorney-General v. Great Eastern Railway Co. 5 (1880) A.C.C 473 : 49 L.J.Ch. 545 : 42 L.T. 810 : 28 W.R. 769.

20. This principle has been applied by the Privy Council to the interpretation of the Acts of the Imperial Parliament creating the Indian Legislature in the case Empress v. Burah 4 C. 172 : 5 I.A. 178 : 3 C.L.R. 197 : 3 P.C.J. 834 : 3 P.C.J. 556 : 2 Ind. Jur. 618 : 2 L.R. 63 : 2 Ind. Dec. 110 (P.C.). Their Lordships say that when the question is raised whether the limits of the powers of the Indian Legislature have been exceeded if the act done lies within the general scope of the affirmative wards conferring the power and if there is no express condition or restriction by which that power in limited, it is not for any Court of Justice to enquire further or to enlarge constructively those conditions or restrictions. Now it is clear that the creation of a Court is within the general scope of the affirmative words which confer powers upon the Governor General of India in Council, for it cannot be denied that the creation of Courts is an essential function of Government. It is also clear that there is no express condition or restriction in the Statute which would apply. Their Lordships judgment also sanctions the principle that where there has been a long course of legislation appropriate to the peculiar circumstances of India prior to the year 1861 it must be presumed to have been known to the Imperial Parliament when the Indian Councils Act of 1861 was passed and that the inference may be drawn that the Imperial Parliament intended to sanction the continuance of the exercise of legislative powers of the same kind. By the application of these principles the Imperial Parliament must be held to have, in 1861, sanctioned the continuance of legislation for the creation of Courts. So far as it may be said to be necessary that the King in person should take a part in the delegation of power such as this, it is sufficient to say that these Statutes received the assent of the Crown--an assent which was not merely formal but which was affirmed so far as the Government of India Act of 1858 is concerned, in a historic proclamation.

21. The petitioners Counsel has endeavoured to combat this manifest conclusion by contending that whenever the East India Company, prior to 1861, desired to create a Court, they never ventured to do so without either obtaining a Charter from the sovereign or a special Act of Parliament or authority from the Emperor of Delhi. I am not satisfied that the proposition is true even for the period prior to 1772, for the first Charter creating Mayors Courts for Madras, Calcutta and Bombay in 176 refers to the reputation already made for strict and equal distribution of justice. The Act of 1772 creating the Supreme Court in Calcutta as first enacted appears to have enabled cases to be brought before that Court by way of appeal from the Provincial Courts and thus recognised the existence of Courts which were or might be created irrespective of the Act (see concluding portion of Section 16, East India Company Act of 1772). The creation of the Provincial Court of Final Civil Appeal; (The Saddar Dewarri Adaulat) was it is true, subsequently validated by Act of Parliament in 178 but this was done merely in order to obviate conflict with the Supreme Court. The Court of Final Criminal Appeal and the entire system of Criminal Courts created in 1793 received no such validation and can be ascribed to no special express authority either from the sovereign or Parliament in England or from the Emperor at Delhi or to the sovereign prerogative in ceded and conquered territory. It can be referred only to the Act of 1772. Since the enactment of the Government of India Act of 1858 there have been repeated instances of the creation of new Courts by the Governor General of India in Council without any authority other than that derived from the Government of India Act of 1858 and the Indian Councils Act of 861. The Acts creating these Courts were subject to disallowance by the Crown by order conveyed through the Secretary of State for India, who is representative of the Crown so far as India is concerned. None of these Acts were ever disallowed. The Indian Councils Act came before Parliament for amendment in 1890, 1891, 1892, and 1909 and the Statute of the law on the subject of the Government of India was consolidated by an Act of 1915. Yet the continuous course of legislation for the creation of Courts was never at any time questioned.

22. The creation of the Court under whose warrant the petitioner is held in custody has not been attacked upon any special ground. It was not, for instance, contended that the Defence of India Act is invalid on the ground that it involves the abrogation of a function essential to the operative existence of this Court. I is clear that the Governor-General in the Legislative Council has power to create Courts. I agree that the ground upon which the petitioner asks for our interference fails on the merits.

23. It is not, therefore, necessary for me to consider whether this Court has power to issue a writ of habeas corpus and I leave the question undetermined.

Mullick, J.

24. I entirely concur in the judgment of the learned Chief Justice. In the view I take it is unnecessary to discuss the limits of the authority of the Crown to erect Courts of Justice in India by executive order. In nay opinion the authority conferred by Section 22 of the Indian Councils Act of 1861 was sufficient to justify the Governor-General in Council in constituting by means of Act IV of 1915 the tribunal by which the petitioner before us has been convicted

Roe, J.

25. I concur in the order proposed. The passages quoted in the judgment of the learned Chief Justice from the judgment of the Judicial Committee in the case of Empress v. Burah 4 C. 172 : 5 I.A. 178 : 3 C.L.R. 197 : 3 P.C.J. 834 : 3 P.C.J. 556 : 2 Ind. Jur. 618 : 2 L.R. 63 : 2 Ind. Dec. 110 (P.C.) furnish in my view a complete answer to the petitioners case.

Atkinson, J.

26. Having had the opportunity of reading and considering the judgment of the learned Chief Justice I desire to express my entire concurrence therewith.